This press release was just put out yesterday by the family of Jesús Aguirre, the 16-year old (now 21-year old) sentenced to life in Pelican Bay prison, for what should have been probably just a few years … and whom we featured in this well-read story last year:

Jesús’ tireless dad has some reason for hope now.

“We would like to thank the whole community for supporting us to correct the injustice that was committed to our son, Jesús. On 2/24/14 the Court of Appeals gave an opinion, which said that Jesús’ sentence was unconstitutional, and that it violates the 8th Amendment of the Constitution* as it is a ‘cruel and unusual punishment’ to a 16-year old. The appellate judges also determined that our son did not have a fair trial and that Jesus had an ineffective assistance of counsel. Moreover the case was handled as a homicide when this case was not one of homicide.

“The appellate court ordered a reversal of the sentence to be carried out. Jesús has a re-sentencing hearing scheduled in court on July 18, 2014. It is our hope that this unjust sentence will be corrected and that my son will finally be given his freedom as he’s spent more than enough time in prison as punishment for an aggression he did not commit. Thank you again for your support and let’s keep on fighting.

“As a reminder, please think critically about what you read in the press. My son has had some stories published about him, specifically in the OC Weekly that are not accurate. Please be mindful of this yellow journalism when reading about Jesus’ case and rely on the facts rather than sensational news in order to inform yourself and formulate your own opinion. Thank you.”

*Note: There’s a slight error here; the appellate court found that Jesús’ sentence could be considered cruel and unusual under the California Constitution, not the Federal one.– Vern

**********

Well, THIS certainly must come as a surprise to anyone who relies on the Weekly and their star journalist R Scott Moxley for their OC crime & “justice” news. It’s unclear why Scott is so hostile to Jesús Aguirre, but now it’s getting out of hand, as he’s only reporting bad news about him and filtering out the good news.

It is true, as Scott writes in this nasty piece from late May, that the February appellate court upheld Jesús’ conviction for attempted murder (I think wrongly.)

But what Scott refused to tell any of his thousands of readers was that, yes, Jesús’ sentence was reversed. Mostly on the grounds of ineffective counsel, REGARDING the possibly cruel and unusual sentence. And there will be a hearing on a new sentence July 18, and the Orange Juice Blog won’t miss it.

“The sentence imposed .. bla bla bla …does not constitute cruel and unusual punishment in violation of the Federal Constitution under Miller, Graham and Roper. But it may constitute cruel and unusual punishment in violation of the California Constitution under Dillon. And defense counsel’s failure to raise the point in the trial court constitutes ineffective assistance in connection with the sentencing.”

Later, on pages 11-12:

“.. even under highly deferential standards, defense counsel’s performance in connection with sentencing was deficient. Defense counsel did not file a sentencing brief and did not even review the probation report with Aguirre. Defense counsel admitted he was ill prepared for the sentencing hearing, and he failed to properly request a continuance, although good cause for a continuance may have existed.

“Most importantly, defense counsel did not assert Dillon and the well-established California Constitution protections against grossly disproportionate cruel and unusual punishments…. In essence, defense counsel did nothing to advocate on behalf of Aguirre regarding the sentencing in this case.”

Not satisfied with leaving out half the story, Scott goes on to inform us gleefully that “Aguirre–who lost his freedom at the age of 16 and is now a 20-year-old resident of the notorious Pelican Bay State Prison–one of the state’s most dangerous, depressing penitentiaries–can’t even ask for parole until about 2060.”

Interesting, that he knows so much more than the appellate court themselves, who plainly wrote on page 11 (while explaining how the punishment is not cruel and unusual under the Federal Constitution) – “There is no dispute that Aguirre will be eligible for parole when he reaches 49.” That would be 2042, not 2060 – quite a difference.

Judge Fybel, in a largely concurring opinion, DOES find the life sentence also unconstitutional under the Federal Constitution (p. 17-19), and referencing a recently enacted Senate bill No. 260, says on page 19 that Jesús should be eligible for parole by 2035 – even a bigger difference. Where does Scott get his “2060?” One pictures the once-fearsome journalist fraternizing with “seasoned veteran prosecutor” Brett Brian rather than reading the actual opinion.

IN ANY CASE, many of us are hoping for “time served” in July – the three to four years he’d already have served seems an appropriate punishment for the dangerous, irresponsible act this squirrelly kid (who also once saved someone’s life from drowning) actually committed. No doubt the Rackauckas-Moxley crowd is hoping for the sentence to be upheld, and extra years added on. Realistically if I had to bet, it’ll be somewhere in between – a few more years.

But the weeks and months do drag on, so if you’d like to write the kid, as I occasionally do, or put something on his books, he’s at:

About Vern Nelson

Greatest pianist/composer in Orange County, and official troubador of both Anaheim and Huntington Beach (the two ends of the Santa Ana Aquifer.) Performs regularly both solo, and with his savage-jazz quintet The Vern Nelson Problem. Reach at vernpnelson@gmail.com, or 714-235-VERN.

17 Comments

It’s time for Moxley and the OCW to give this young man a break, and a chance. One of the lessons I got from attending LJ Rodriguez’ presentation at the Fullerton Library, organized by Gustavo, was to give people a chance.

How sad that the thin-skinned vulgar illiteracy of the Weakly’s commenters is rubbing off on its editor. Remember the good old days when the hard hitting dirt they would expose about OC, outnumbered rewrites of the police blotter? Does its new demographic mostly pick it up to see if their mug shots made the big time? (like getting Willard Scott to announce your birthday!)

My reference is his talk on 2012. Mr Rodriguez is a strong proponent of giving young people a second chance. From his blog: ” Recently Luis was part of an Amici Curiae brief to arguments for ending juvenile life without parole sentencing in front of the US Supreme on November 9, 2009. Along with other notable youth offenders who have changed their lives after being given second changes ”

As usual when it comes to Vern’s rambling kiss-ass bullshit, he misses any and all facts. What he breathlessly calls breaking news and a dereliction of duty by Moxley was something we reported all the way back in February:

“But the panel reversed the sentence based on it’s conclusion that Aguirre’s trial lawyer provided “ineffective counsel” at the punishment stage. While not necessarily calling for a reduced punishment, they asked Froeberg to conduct a new sentencing hearing and issue specific findings so they review the merits of his decision.

Under Froeberg’s original sentencing that includes the possibility for parole, the defendant–who is now 20 years old–would get his first chance to seek release from prison at the age of 49.

Justice Richard D. Fybel penned a concurring opinion, stating that he believes a minor sentenced to a life term in prison in a non-homicide case raises constitutional issues of “cruel and unusual punishment.”

Reversal of sentence, age of eligibility for parole, the “cruel and unusual” opinion by the judge—all things Vern says Moxley didn’t report…Moxley did.

Hey, Vern: As I’ll always remind you, the only time I met you, you were slurring and smelled of cheap booze and loser sweat. I’m glad to see that your writings to this day continue to be a manifestation of that encounter.

1. Claimed Jesus “can’t even ask for parole until 2060,” when he obviously already knew that he’d be eligible in 2042, or even 2035. Doesn’t sound too honest or accurate to me.

2. Felt it completely irrelevant, while celebrating his fantasy of Jesus being in Pelican Bay till he’s a senior citizen, to mention that he has a re-sentencing hearing coming right up, and could conceivably even walk free next month.

Readers get the distinct impression you guys would be devastated if that happened. We just can’t figure out why that is.

Oh by the way, does Scotty really misspell “its” as “it’s”? I hate it when people do that. Sounds like he needs an editor.

Thank God Jesus is getting a do over in this bullshit circus act. Im completely stymied by Moxleys coverage of this case and for Gustavos defense of it. It does not make sense.

His coverage of the wrongful termination of that bouncer at the Slide bar made it look like the whole murder trial was in jeopardy. Like this case he may have reported some relevant facts but it was done in a way that diminished them in lieu of hyperbole that benefitted the BPPD and FPD.

I see a problem with the convictions being upheld and the only thing being changed is the sentence. That leaves him open to still severe punishment and may result in only removing the 25 to life leaving him with life. That’s my only problem with this decision.